12-1633.   Railways and street railways; crossings; construction ofviaducts or tunnels; regulation of speed; appraisement and payment ofdamages; liens; actions;penalties.The governing body of cities of the first and second class shall havethe power to regulate the crossings of railway and street-railway tracksand provide precautions and adopt ordinancesregulating the same; toregulate the running of street railways or cars and to adopt ordinancesrelating thereto and to govern thespeed thereof;to regulate the runningof railway engines and cars, except speed, and to adopt ordinances relatingthereto;and to make other and further provisions, rules andregulations to prevent accidents at crossings and on tracks of railways,and to prevent fires from engines, and to require all railway companies toerect viaducts over or tunnels under their tracks at the crossings ofstreets.

      From and after the effective date of this act,that part or parts ofany rule, regulation or ordinance adopted pursuant to this sectionregulating the speed of railway engines and cars shall not be of any forceor effect, and that part or parts shall be and are hereby declared null andvoid.

      The governing body shall have power to require any railroad company orcompanies owning or operating any railroad or street-railway track ortracks upon or across any public street or streets of the city to erect,construct, reconstruct, complete and keep in repair any viaduct or viaductsupon or over or tunnels under such street or streets and over or under anysuch track or tracks, including the approaches of such viaduct, viaducts ortunnels as may be deemed and declared by the governing body to be necessaryfor the convenience, safety or protection of the public. Whenever any suchviaduct shall be deemed and declared by ordinance to be necessary for theconvenience, safety or protection of the public, the governing body shallprovide for appraising, assessing and determining the damage, if any, whichmay be caused to any property by reason of the construction of such viaductand its approaches. The proceedings for such purpose shall be the same asprovided by law for the purpose of ascertaining and determining damages toproperty owners by reason of the change in grade of any street, except thatsuch damage shall be paid by such railway company or companies. The amountof damage thus ascertained and awarded shall, upon notice by the city, bepromptly paid by the railway company or companies interested and if anysuch company shall fail to pay the same within 10 days from receipt ofnotice of the amount thereof, then the amount so awarded shall become alien in the proportion to the amount each railway company shall pay, ifmore than one company is concerned, upon the right-of-way and allpropertyof such railway company and the collection may be enforced by thecity in an action against such railway company or companies failing topay. The width, height and strength of any such viaduct or tunnel and theapproaches thereto, the material to be used, and the manner ofconstruction, shall be as required by the governing body.

      When two or more railroad companies own or operate separate lines oftrack to be crossed by any such viaduct, either upon, above or below thegrade, or where any street-railway company intersects and crosses the trackor tracks of any railroad company, the proportion thereof and of theapproaches thereto to be constructed by each, and the proportion of cost tobe borne by each, shall be determined by the governing body. It shall bethe duty of any railroad company or companies or street-railway company,upon being required, as herein provided, to erect, construct, reconstructor repair any viaduct or tunnel, to proceed, within the time and in themanner required by the governing body, to erect, construct, reconstruct orrepair the same, and it shall be a nonperson misdemeanor for any railroadcompany orcompanies or street-railway company to fail, neglect or refuse to performsuch duty, and upon conviction, any such company or companies or thesuperintendent or other officer having charge of such railway company orstreet railway in the district or division where such viaduct or tunnel isto be erected or repaired, shall be fined $100, orimprisoned in the county jail not less than 30 days, and each day suchcompanies or officers shall fail, neglect or refuse to perform such dutyshall be deemed and held a separate offense; and in addition to the penaltyherein provided any such company or companies shall be compelled bymandamus or other appropriate proceedings to erect, construct, reconstruct,or repair any viaduct or tunnel as may be required by ordinance as hereinprovided.

      The governing body shall also have power, whenever any railroad companyor companies or street-railway companies shall fail, neglect or refuse toerect, construct or reconstruct or repair any viaduct, viaducts or tunnel,after having been required so to do as herein provided, to proceed with theerection, construction, reconstruction or repair of the same by contract orin such other manner as may be provided by ordinance and assess the costthereof against the property of such railroad company or companies orstreet-railway company, and such cost shall be a valid and subsisting lienagainst such property, and also shall be a legal indebtedness of suchcompany or companies in favor of such city, and may be enforced andcollected by suit in any court having jurisdiction.

      History:   L. 1903, ch. 122, § 59; L. 1911, ch. 89, § 1; L. 1913,ch. 106, § 1;R.S. 1923, § 12-1633;L. 1988, ch. 76, § 1;L. 1998, ch. 164, § 2; July 1.